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ELCStruck OutNot stated in the judgment as provided

Murithi v Mururu (Environment and Land Appeal E023 of 2024) [2025] KEELC 7434 (KLR)

Environment and Land Court
30 October 2025
4,403 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~18 min to read original · ~4 min brief

The bottom line

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The Environment and Land Court struck out a land appeal filed one day late without leave, confirming the original judgment stands and the appellant pays costs.

What this practically means

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Executive summary

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This is a first appeal to the Environment and Land Court at Isiolo against the judgment of Hon. M.A Odhiambo, SRM, delivered on 27th September 2024, which dismissed the appellant's suit (as plaintiff) claiming ownership of plot No. 393 Kambi ya Juu and trespass by the respondent (owner of plot No. 398A), finding he had not proved his case on a balance of probabilities. The appellant contended the trial court ignored his documentary evidence and the county surveyor's reports, and erred in relying on the county physical planner's report. The respondent opposed, raising two principal points: first, the appeal was filed out of time without leave – the memorandum dated 24th October 2024 was only paid for and lodged on 28th October 2024, one day past the section 79G deadline – and second, the appellant produced no allotment letter, approved part development plan, or survey report to prove ownership or encroachment. The court framed two issues: timeliness and merit. On timeliness, applying Salat, Pentagon Communications and South Nyanza Sugar, it held the appeal was filed out of time and was therefore a nullity ab initio, stripping the court of jurisdiction. For completeness, the court also found the appeal meritless: the appellant proved neither ownership (no allotment documents; the part development plan was unsigned and unapproved; he had been evicted under an unimpugned enforcement notice) nor trespass (no surveyor called, no survey report). The appeal was struck out, the trial judgment and decree affirmed, and costs awarded to the respondent.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the subject appeal was filed timeously and in accordance with the provisions of section 79G of the Civil Procedure Act or otherwise
  2. 2.Whether the appellant established his claim pertaining to the suit property or otherwise

Key legal issues

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01

Timeliness of the appeal under section 79G Civil Procedure Act

Holding

The judgment was delivered on 27th September 2024; the last day for filing the appeal was 27th October 2024, but the memorandum of appeal was paid for and lodged on 28th October 2024, without leave; the appeal was therefore filed out of time and was a nullity ab initio, striking the court's jurisdiction

Reasoning

The court computed the 30-day period exclusive of the judgment date but inclusive of the last day, fixing the deadline at 27th October 2024. Counsel for the respondent showed, from the court tracking system and receipt No. RA-0245801, that fees were paid on 28th October 2024. Appellant's counsel remained mute and neither denied nor confirmed the payment date. Relying on Salat and Pentagon Communications, the court held the appeal statute-barred and void.

p. 6
02

Whether the appellant proved ownership of plot No. 393 Kambi ya Juu

Holding

The appellant failed to prove ownership: he produced no letter of allotment, application for allotment, certified council minutes, approved part development plan, or title; the part development plan produced was unsigned and unapproved, hence invalid

Reasoning

As plaintiff, the appellant bore the burden of proving ownership on a balance of probabilities. His assertions of sole registered ownership remained allegations unsupported by documents underpinning allotment or entitlement. He was also evicted pursuant to an enforcement notice issued by the county government of Isiolo on 16th May 2014, whose validity was never impugned, so he had long been evicted when he filed suit.

p. 7
03

Whether the appellant proved trespass/encroachment by the respondent

Holding

Trespass/encroachment was not proved: the appellant called no surveyor and tendered no survey report

Reasoning

The appellant contended the respondent encroached and merged his plot with hers in 2017. However, he called only four witnesses including himself, none of whom was a surveyor, and no survey report was produced. The trial magistrate's finding that no surveyor's report substantiated the claim of encroachment was therefore well-grounded and the trial court's conclusion was inevitable.

p. 8
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Duty of a first appellate court

Holding

A first appellate court must subject the entire evidence to fresh and exhaustive scrutiny, but may only depart from trial findings on defined grounds

Reasoning

The court, guided by Belgo Holdings and Peters v Sunday Post, restated that the first appellate court re-evaluates evidence and may draw its own conclusions, while bearing in mind it neither saw nor heard the witnesses, and will not disturb trial findings unless they rest on no evidence, are perverse, rest on misapprehension of evidence, or an error of principle.

p. 4

Legal principles established

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  • An appeal filed out of time without leave of the court is a nullity ab initio and deprives the court of jurisdiction to entertain it
  • Pleadings filed before the court are only deemed as filed upon payment of court fees; the date of payment is critical
  • A first appellate court may only depart from trial court findings where they are based on no evidence, are perverse, based on misapprehension of evidence, or an error of principle
  • Absent a survey report, it is impossible to prove trespass or encroachment

Court orders

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  1. 1.The Appeal be and is hereby struck out
  2. 2.The Judgment delivered on 27th September 2024 and the consequential decree be and are hereby affirmed
  3. 3.Costs of the Appeal be and are hereby awarded to the respondent

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

On appeal from
Senior Resident Magistrate's Court (subordinate court), Isiolo
Not stated
Jurisdiction invoked
First appellate jurisdiction under sections 78 and 79G of the Civil Procedure Act; appeal canvassed by written submissions under Order 42 rule 13 of the Civil Procedure Rules, 2010

Relief refused

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Appeal allowed; impugned judgment set aside and judgment entered in favour of the appellant in terms of the Plaint dated 15th May 2017

The appeal was filed out of time without leave and was thus a nullity; and on merit the appellant failed to prove ownership of the suit plot and trespass/encroachment

p. 6

Costs

Costs of the Appeal be and are hereby awarded to the respondent

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

The Appeal be and is hereby struck out.
p. 8Final orders – striking out
The Judgment delivered on 27th September 2024 and the consequential decree be and are hereby afirmed.
p. 8Final orders – affirmation of trial judgment
Costs of the Appeal be and are hereby awarded to the respondent.
p. 8Final orders – costs
No appeal should have been filed out of time without leave of the court. Such a filing renders the ‘document’ so filed a nullity and of no legal consequence.
p. 7Filing out of time renders document a nullity (Pentagon Communications, adopted)
Absent a survey report, it is dificult, nay impossible to prove trespass/encroachment.
p. 8Proof of trespass requires survey report

Issues in the judgment

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minor

The judgment inconsistently dates the county surveyor's report relied on by the appellant – variously 4th September 2019 and 10th/11th November 2021

minor

Typographical errors in the disposition, e.g. 'The appeal courts being struck out' and 'the appeal courts dismissal'

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Murithi v Mururu (Environment and Land Appeal E023 of 2024) [2025] KEELC 7434 (KLR)", Case Analysis (2025). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7434/eng@2025-10-30

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.